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oil giant Chevron accountable for its human rights
and environmental abuses in Ecuador

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Wednesday, October 30, 2013

Today, the legal team for Steven Donziger and the
Ecuadorians targeted by Chevron's retaliatory RICO suit filed a motion—filled
with devastating detail—to strike the testimony of the oil giant's star
witness.

That star witness, disgraced former Ecuadorian Judge Alberto Guerra, testified during the RICO trial last week that representatives of the
Lago Agrio Plaintiffs secured the opportunity to ghostwrite the 2011 judgment
against Chevron issued by the Ecuadorian court by promising the presiding judge
$500,000.

Well, I guess Chevron can rest its case. Silver bullet. Or,
more like magic bullet.

One of the main problems with the story—besides the fact
that it never happened—is that after weaving his tall tale, Guerra admitted
that he had offered between ten and twenty bribes to judges during his career
as a lawyer and after becoming a judge, accepted about the same number of
bribes, sometimes for as small as $200, to "fix" cases.

But it gets worse, at least for the credibility of his
fanciful testimony. From today's motion:

Guerra further
understood from multiple conversations and lunch meetings with Chevron
attorneys—where, as Guerra’s testimony revealed, they always fully heard out
his offers and consulted with their principals before allegedly saying
“no”—that as an out-of-work former judge with no role in the case, he simply
didn’t have the “goods” Chevron wanted. Guerra had every incentive to manufacture
those goods so that he could bargain hard with Chevron about the price of his
testimony. And bargain he did, lying repeatedly to Chevron—i.e., that he was in
possession of emails that would confirm Chevron’s ghostwriting allegations;
that he possessed drafts of the Judgment; that the Lago Agrio Plaintiffs had
recently offered him $300,000 to cooperate—in order to improve his bargaining
position.

Okay, so the guy is an admitted liar and criminal but you
know, maybe he's telling the truth now. What incentive could he possibly have
to make up a new story now? Back to the motion:

When, after a long
career of paying and accepting bribes, Guerra apparently decided that he would
place himself in the service of Chevron, the former judge was earning $500 per
month and had no savings. In contrast, Chevron has committed to paying Guerra,
for a period of at least two years, a “salary” of $10,000 per month—20 times
more than he was earning in Ecuador. It is unclear what need Guerra has for
such a generous salary, in light of the fact that Chevron also: (i) provides
Guerra with a monthly $2,000 “housing allowance”; (ii) bought Guerra a car and
is paying for his auto insurance; (iii) is paying for health insurance to cover
Guerra, his wife, his son, his son’s wife, and his grandchildren; (iv) paid
Guerra roughly $12,000 to purchase household items upon his move to the U.S.;
(v) paid Guerra’s moving expenses, including five airline tickets,
transportation of personal items, and a temporary hotel stay upon arriving in
the U.S.; (vi) paid Guerra roughly $50,000 in exchange for “evidence,”
including $10,000 for belatedly finding a single document that supposedly eluded
Guerra upon prior searches because it was “stuck” to something else; and (vii)
pays the legal fees of Guerra’s various attorneys, including the fees of the
lawyers handling immigration issues for his various family members. Guerra’s
relocation on Chevron’s dime also reunited him with his daughter and a second
son, who live in the U.S. and who Guerra had not seen in several years.

In other words,
Chevron is bribing a judge to say that Donziger bribed a judge.

And the package Chevron has put together for this judge is
outrageous, and egregiously runs afoul of federal law and ethical rules of
conduct.

The motion outlines how the payments violate the federal Anti-Gratuity
Statute as well as the Rules of Professional Conduct of New York, where the
trial is taking place. By all means, read the motion for a detailed explanation
of the rules but here is the view of prominent legal scholar and law professor
Erwin Chemerinsky in a sworn declaration for the Defendants:

“if a party or its counsel were
permitted to pay a testifying witness for physical evidence, beyond the
reasonable value of that evidence, and to pay the witness a salary in exchange
for an agreement to testify, there would be little left of the rule against
compensating fact witnesses.”

And the conclusion of the motion on the payments to Guerra?:

The bottom line is
that Guerra is and apparently always has been desperate for money, and will
stoop to extraordinary lows to get it—including fabricating a story for
Chevron, weaving big lies with small truths in an effort to create the illusion
of a verified account. Guerra’s recent testimony only serves to drive his
unreliability home.

The motion is well worth reading in its entirety as it also
highlights the admitted lies, the contradictions, and the suspect assertions in
Guerra's testimony, as well as the total lack of anything approaching
corroborating evidence for his explosive allegations.

During cross-examination, Guerra explained that he spent 3-4 days of every week for 3 full months
in New York working with a team of Gibson Dunn lawyers led by Randy Mastro in
preparation for his two days in court. That should be enough time for even a
novice actor to learn his lines, no matter how fanciful a story he’s telling.

And hey, if it means reuniting with his beloved family in
the United States, where he’ll enjoy a lifestyle he could only dream of before,
it’s time well spent. And then some.

And for Chevron?

Simple. Guerra’s testimony is Chevron’s ‘magic bullet’ to
save its RICO case and help the company avoid paying the $19 billion judgment
for its devastation of the Ecuadorian Amazon.

If it worked, it would be money well spent. And with a biased federal judge presiding, it
probably will work – until a real court, the Second Circuit Court of Appeals,
reviews the matter down the road.

Never mind that the money spent on bribing Guerra to
fabricate his story could be used to clean up the company’s contamination in
Ecuador. But for Chevron, living up to its legal and moral responsibilities
overseas would set a terrible precedent.

In the end, Guerra’s preposterous testimony, bought and paid for by
Chevron, his court performance the culmination of months of preparation
by a team of highly-paid lawyer-thespians at Gibson Dunn, adds one more
layer of absurdity to the farce that the current proceedings represent. A
single federal judge in New York can no more act as an appellate court
for the entire Ecuadorian Judiciary than Alberto Guerra’s words can be
taken as the truth. And Chevron can no more hide from the truth than the
company’s legal machinations can conceal its contamination, and its
liabilities, in Ecuador.

Monday, October 28, 2013

In an October 23rd letter to Judge Lewis A. Kaplan, Steven Donziger writes:

“I write to record objections to certain procedures being
used that I believe are interfering with my ability to mount a defense
and violating my fundamental right to a fair trial.”

Steven’s letter goes on to enumerate in detail issues in the
proceedings currently underway, including prohibitions by the judge
against using evidence of Chevron’s liability for contamination in
Ecuador, and no ruling yet from the judge as to whether Steven will be
allowed to testify in open court (as opposed to only by written
declaration).

Saturday, October 19, 2013

Katie Redford at Earth Rights International posted a blog here, writing eloquently on the privilege to "speak" and limit activism that corporations are enjoying, as the rights of human beings to hold those corporations accountable continues to wane. The struggle of the Lago Agrio Plaintiffs and Steven Donziger is highlighted as an example of SLAPP (Strategic Litigation Against
Public Participation) suits by corporate defendants seeking to avoid accountability. Click here, or read on below...

Every
day, human rights defenders around the world risk their lives to stand
up against injustice. Whether investigating government abuse in Syria or
Russia, or exposing corporate abuse in Nigeria or Ecuador, brave
individuals everywhere depend on fundamental rights of free speech to do
their work. The United States has always celebrated such rights as
vital to our democracy—after all, there is a reason that the First
Amendment came first. Yet recent trends, bolstered by a series of
federal and Supreme Court cases, have privileged the free speech rights
of corporations while silencing the living, breathing human beings that
need those rights most.

It’s certainly no news that today’s corporations enjoy unprecedented
global power. Likewise, the corporate lobby’s campaign to stifle human
rights activism has been steadily increasing. Since Citizens United,
which extended First Amendment rights to corporations as “persons”,
we’ve seen bold legal arguments against laws and regulations that would
hold them accountable to fundamental human rights law. This year, for
example, the Supreme Court held in Kiobel v. Shell that
Nigerian survivors of torture and crimes against humanity could not seek
justice against Shell in U.S. Courts. The “mere corporate presence” of
Shell in the U.S. was not enough for the Court to allow the
plaintiffs—lawful residents of the U.S.—to bring their case. Courtroom
doors that have been open to the world’s powerless for over 30 years
are now closing thanks to a concerted effort by the most powerful.

Yesterday, the Supreme Court heard arguments in a case that could
push this dangerous precedent even further. Largely outside the radar
of the human rights community, DaimlerChrysler AG v. Bauman
arises out of the company’s alleged participation in targeting labor
activists in Argentina’s Dirty War, a period of terror that involved the
murder, torture and disappearances of thousands of activists and
political dissidents. The allegations are chilling: Mercedes-Benz
Argentina identified workers within its plant as “subversives” to state
security forces, knowing full well that, as a result, those workers
would be abducted, tortured, murdered or “disappeared”. Equally
chilling is the prospect that the Supreme Court will enshrine corporate
rights over human rights in law once again. Like Shell in Kiobel,
the question is whether the German company is legally present in the
U.S. for purposes of jurisdiction. Daimler says that it has a
constitutional right to be treated separate from its subsidiaries. Where that right exists in the constitution is up to anyone’s imagination.

Unfortunately, it’s not just the Supreme Court that’s privileging corporate rights over human rights. The American Petroleum Institute (API) sued the Securities and Exchange Commission (SEC) earlier this year,
arguing a First Amendment right to make secret payments to foreign
governments. The case concerned Section 1504 of the Dodd-Frank Act
which would require oil, gas and mining companies to disclose the
payments they make to foreign governments, making this information
available to the people living in resource-rich countries for the first
time. Such transparency regulations prevents corruption and promotes
human rights, not least access to vital information that citizens in
resource-rich countries require to demand accountability from their own
governments. Yet the API argued that the First Amendment allows them to
conceal such payments, and the SEC is now revising their rule.

Sadly, these cases are not new or unique. Human rights advocates
have always faced an uphill battle, especially when taking on corporate
abuse. What is new is the way in which our highest courts are
privileging corporations and their rights over those of actual human
beings. SLAPP suits and corporate tactics aimed at discouraging human
rights advocates from speaking out and demanding justice are
time-tested. But the aggressiveness and vigor with which Chevron has
been allowed to pursue such tactics is new, and other corporations are
following suit.

We must ask ourselves this question: How can we speak truth to power when those with power have more rights to speak?

NEW YORK, /CSRwire/ - With the first week of trial in Chevron’s
RICO case over, it is becoming increasingly clear that the oil giant is
facing significant hurdles as it attempts to salvage a verdict that will
allow it to block international efforts to enforce the $19 billion
Ecuador judgment.

After the first four witnesses, several issues have come into sharp
focus. First, Chevron is willing to give up major portions of its RICO
claims to avoid compelling evidence of its environmental pollution and
corrupt activities in Ecuador from coming out in court.

At the same time, Judge Lewis A. Kaplan is doing everything he can to
assist the oil giant’s case. Kaplan has blocked most lines of
questioning about environmental contamination, blocked evidence of
Chevron’s surveillance of Donziger, granted Chevron a trial preparation
room five times the size of that used by Donziger and Ecuadorian
defendants Hugo Camacho and Javier Piaguaje, and most notably, has twice
taken over the questioning of Chevron witnesses.

“I don’t think there’s a lawyer in the world who would guess that
this is a RICO case had they sat through the first week of trial,” said
Christopher Gowen, the spokesman for Donziger. “Chevron clearly wants
to retry the Ecuador case that it lost in its preferred court”.

Gowen said Chevron’s case rests largely on a veritable parade of
witnesses “who seem to personally dislike Steven Donziger” but have
little information relevant to the legal claims in the case. “Chevron
will continue to use this proceeding to try to destroy Donziger’s
reputation by distorting facts about him, which seems to be central to
their strategy,” he added.

The most stunning development occurred the first day when Chevron
dropped a key predicate RICO act alleging that Donziger and his
colleagues pressed for prosecutors in Ecuador to file “bogus” criminal
charges against Ricardo Reis Veiga, a top Chevron lawyer. Just as
lawyers were about to confront Reis Veiga with evidence that the charges
were based on scientific proof that he designed and supervised a
fraudulent remediation, Chevron agreed to drop that issue.

That move “completely validates everything Steven Donziger has been
saying about this issue for years.” said Gowen. “It was manufactured by
Chevron to put pressure on Donziger and harm his reputation, and it was
false.”

“We were prepared to prove that Veiga orchestrated a major fraud in
Ecuador to try to get Chevron out of its huge liability, and that the
criminal charges against him had a valid basis,” Gowen continued. “You
may draw your own conclusions about why Chevron dropped this claim.”

Another of Chevron’s key witnesses, a former technical consultant for
the rainforest communities named David Russell’s written testimony,
authored by Chevron’s lawyers stated that Donziger pressured him to put
out an inflated damages estimate in 2003 to pressure the company into a
settlement. Curiously, Mr. Russell had a much different tone during a
2003 interview with the Wall Street Journal where, in his own words, he called the Ecuadorian contamination “larger than the Chernobyl disaster”.

Under cross-examination on the stand, Russell testified that he spent
days putting together the assessment based on assumptions then
available from limited data, and did so with no interference from
Donziger.

Whether the thousands of dollars Mr. Russell has made from Chevron
for his “testimony prep” influenced his testimony is rather obvious.
Russell even admitted that Chevron lawyers at Gibson Dunn & Crutcher
wrote his testimony for him in the first person.

Chevron scientist Sara McMillen was caught having to admit that the
company’s technical experts were told to only look for “clean” soil
samples during the judicial inspections. Donziger has long accused
Chevron of engaging in junk science to defraud Ecuador’s court. (For a
copy of his own claims against Chevron that Judge Kaplan would not let
go forward, see here).

McMillen also conceded that Chevron called its own paid experts
“independent” – the exact same term used by Donziger and his colleagues
that Chevron claims was inappropriate.

"Chevron's witnesses have affirmed what the victims of Chevron's
contamination have known all too well for decades -- that a huge area
where Chevron operated is horrifically polluted," said Han Shan,
spokesperson for the Ecuadorians named in Chevron's RICO suit.
"Chevron's attempts to run from this basic truth adds insult to injury
for thousands of people who continue to suffer the impacts of the
company's reckless conduct."

Chevron’s RICO has three main problems:

First, the main activity in the case took place outside the U.S. in
Ecuador, while the statute only applies to acts in the country. Second,
now that Chevron has dropped money damages claims to avoid a jury,
there is no equitable relief remedy available (such as an injunction
blocking enforcement) Third, and most notably, Mr. Donziger did not
commit a “predicate act” as clearly required by the RICO Statute,
according to Gowen.

“Chevron figured out how to avoid a jury because the company knew
full well New Yorkers would have seen through its charade,” he added.

Wednesday, October 16, 2013

On the very second
morning of the trial in Chevron's retaliatory RICO suit, one of the oil giant's
star witnesses dropped a bombshell.

And the star witness—Chevron's own Ricardo Reis Vega, the
company's vice president who oversaw its legal defense in the Ecuador
case—dropped that bombshell on another of Chevron's star witnesses.

With the courtroom packed with people who mostly already
knew about the incident, the major revelation drew little response except some
frantic scribbling in notebooks and whispering in the dark suited, shoulder to
shoulder Chevron seating section.

For those of you who haven't been closely following the
tortuous grind of this case, Reis Veiga's admission is substantial and
eviscerates the credibility of the witness Chevron is relying on to support its
most explosive—and ridiculous—allegations in the case.

Reis Vega was asked
if he had personal knowledge that in 2009, the disgraced former judge in the case in Ecuador,
Alberto Guerra, approached Chevron, promising to "fix the
case."

Reis
Vega replied, simply, "Yes, I do."

Chevron is promising that Judge Guerra—who the company
admits offered to "fix the case", will be its star witness in
Chevron's trial. He is expected to say that the Ecuadorian Plaintiffs' legal
team offered to bribe judges, an outrageous claim they vigorously deny. Judge Guerra who has in fact been paid more
than $325,000 by Chevron, in some cases by lawyers toting suitcases in cash. Who is bribing whom?

While this all sounds hyperbolic; unfortunately it is not,
and will be corroborated soon enough in court.

Tuesday, October 15, 2013

Today in New York Ecuadorian villagers from the Amazon rainforest
region ravaged by Chevron's oil contamination were joined by supporters
for a rally in Foley Square across from the courthouse where a trial
opened in the California-based oil giant's retaliatory RICO lawsuit
against the Ecuadorians and their U.S.-based legal advocates.

The Ecuadorians are representing 30,000 plaintiffs who won a
landmark judgment against Chevron in an Ecuadorian court in 2011 in
which the company was ordered to pay more than $18 billion for cleanup
of widespread contamination, as well as compensatory and punitive
damages. The case holding Chevron accountable for toxic dumping by its
predecessor company, Texaco, has been upheld by appellate courts in
Ecuador.

After nearly 20 years since the case was filed in 1993, Chevron
still refuses to pay for a cleanup and is waging a scorched earth legal,
PR, and lobbying campaign to crush its victims and their advocates and
supporters. The oil giant stripped its assets from the country, forcing
the Ecuadorians to pursue enforcement of the judgment in countries where
the company maintains assets.

While Secoya indigenous community leader Javier Piaguaje
continues to contest that the New York court can assert Personal
Jurisdiction over him, he has traveled to New York to represent the tens
of thousands of Ecuadorian plaintiffs who couldn't be there and defend
them against Chevron's insulting allegations. He had this to say outside
the courthouse in Foley Square today:

Ladies and gentlemen,

30,000 people were affected by Chevron's contamination and each
day this number increases. Almost 30 years of criminal operation by the
Chevron-Texaco oil company in Ecuador; more than 1,500 square miles of
contaminated Amazonian rainforest; rising cases of cancer that almost
always end in death; the suffering of our women for the great number of
miscarriages; the devastation of the ecosystems and the destruction of
thousands of species of plants and animals.

When Texaco arrived, we were expelled from our ancestral lands
and two indigenous peoples went extinct. What the oil company brought to
the Ecuadorian Amazonian was violence, death and destruction;
meanwhile, the company got all the riches that the land offers at the
cost of our lives, our health, and our home.

For this reason we continue our efforts to hold Chevron
accountable, so that the company pays for all of the harm that it
caused. We are here in New York now, where Chevron persecutes us and
accuses us of being criminals and is supported by a judge who doesn't
know our reality and suffering and hopes. Who are the real villains in
this story?

We are outside this courthouse to tell the history that Judge
Lewis Kaplan has refused to hear. Our misery is real and it will not
cease to exist by a judicial process in New York, where Chevron hopes to
avoid its responsibility with the collaboration of a judge that isn't
even willing to validate the harm that we've had to endure. We come to
denounce the abuse that is being committed in affected communities but
also to tell them that we have already fought for 20 years and this RICO
lawsuit will not stop us in our quest for justice.

The oil company has declared that it will fight us "until hell
freezes over." Obviously our economic conditions are not the same; they
can buy justice, we cannot. Because of this we must unite to fight
against a giant that understands money, but not values like solidarity,
truth, fellowship, and above all, justice.

Our fight is to keep the Amazon, the lungs of the planet, alive.

Our fight should interest the whole world.

We unite to make the world a place that is worth living in. The Amazon was one of those places. With your help, it can be again.

Thank you.

Forty-seven "named plaintiffs" – all of them indigenous
rainforest residents and rural villagers – have been named in Chevron's
lawsuit, which alleges that the entire case is a conspiracy to extort
the company. Two of the Ecuadorian villagers, while rejecting the New
York court's jurisdiction over them, have nonetheless appeared in the
case in order to fight the allegations. Fearing a public backlash for
suing victims of its pollution, Chevron has focused its smear campaign
on New York-based human rights attorney Steven Donziger, who has advised
the Ecuadorians in their efforts since first visiting the contaminated
region in 1993.

The Ecuadorians and their supporters have called for an end to
Chevron's retaliatory lawsuit, and are calling this latest effort a
"rigged show trial" before a federal judge, Lewis A. Kaplan, who has
displayed outright hostility to the Ecuadorians' legal efforts to demand
a cleanup. Judge Kaplan has also made repeated disparaging
on-the-record comments about Ecuador's judicial system.

Texaco operated in Ecuador until 1992, and Chevron absorbed the
company in 2001, assuming all of its predecessor's assets and
liabilities. Chevron has admitted to dumping nearly 16 billion gallons
of toxic wastewater – the byproduct of oil drilling and pumping – into
rivers and streams relied upon by thousands of people for drinking,
bathing, and fishing. The company also abandoned hundreds of unlined,
open waste pits filled with crude, sludge, and oil drilling chemicals
throughout the inhabited rainforest region. In other countries at the
same time as it was operating with no environmental controls in Ecuador,
the company re-injected wastewater and used other easily-deployed
technologies to deal with the toxic byproducts of its activities.

Multiple independent health studies have shown an epidemic of
oil-related birth defects, cancers, and other illness. It is estimated
that the contamination has directly led to at least 1,400 deaths.

More Information:

For more on the campaign to hold Chevron accountable for its abuses in Ecuador: ChevronToxico.com

Today in a New York Courtroom, Chevron’s campaign to evade
accountability for its environmental and human rights abuses in Ecuador
officially enters a new, egregious, ridiculous stage.

This morning, in Judge Lewis Kaplan’s courtroom on the 21st floor of
the Daniel Patrick Moynihan U.S. Courthouse in New York, Chevron’s team
of lawyers assembled on one side, while long-time advocate for the
Ecuadorian rainforest communities, Steven Donziger and his team
assembled on the other. Some journalists and supporters of the fight to
hold Chevron accountable filled out the courtroom and fidgeted, while
waiting for whatever would come next.Missing from the courtroom as Judge
Kaplan called the first day’s hearing to order was Javier Piaguaje,
Secoya indigenous leader from the community of San Pablo, deep in the
Ecuadorian Amazon. He has consistently rejected the New York court’s
jurisdiction but traveled here to represent the thousands of Ecuadorian
victims of Chevron’s pollution who are being victimized even now by
Chevron’s ongoing scorched earth campaign to crush their righteous fight
for justice.

Earlier in the morning, Javier stood beneath the Flaming Sword of
Justice Monument to briefly address a large crowd of people gathered in
Foley Square; members of the Ecuadorean community in New York, and
supporters of human rights and the environment who came out in
solidarity.
High above Foley Square, Judge Kaplan began the proceedings without a
single representative from the affected Ecuadorian communities. A few
minutes later, finally, Javier joined Steven in the courtroom, along
with their lawyers. Javier had been delayed by long lines at the
entrance check-point; security was tight for the high-profile arraignment of a terror suspect.

But as the proceedings continued, the scene grew only more bizarre.

In its opening statement, Chevron failed to mention a single element
of law against the Ecuadorian defendants. It seems clear that the court
has no choice but to dismiss the entire matter against the Ecuadorians.

In fact, Chevron’s opening statement displays an absolute obsession
with Donziger, but an utter lack of legal basis to proceed in the show
trial now underway. Chevron even failed in its opening statement to
suggest any sort of relief they may be seeking from the court,
suggesting they don’t have a legal basis for relief.

At the outset, besides the overarching fact that this whole RICO case
is merely a weapon of mass distraction designed to explode the landmark
verdict won by the Ecuadorian plaintiffs after one of the most
litigated environmental cases in history, Chevron’s case has a couple
obvious major problems from a legal standpoint: the company can’t meet
the elements of law, and there’s no relief available anyway.

And all of that became clear within the first hour or two. Stay tuned…

Monday, October 14, 2013

This is an excellent segment. Watch Steven Donziger interviewed on HuffPost Live:

Steven sets the record straight when the ill-informed host throws out some baloney about film outtakes showing Steven talking about bribes—an allegation Chevron hasn't even made despite its myriad other ridiculous accusations.
No such outtakes exist because it never happened, on film or otherwise.

Chevron has thrown around so many wild accusations that people can't even keep them straight, which is probably the point.

Tuesday, October 8, 2013

Today, the New York Law Journal ran an article on its front page about the upcoming trial in Chevron's retaliatory RICO lawsuit against the victims of Chevron's abuses in the Ecuadorean Amazon, and their long-time U.S. attorney, Steven Donziger. The piece begins:

The pitched battle between Chevron Corporation and a lawyer and Ecuadorians who won a multi-billion-dollar environmental judgment against the oil company in Ecuador is set for trial on Oct. 15, before Southern District Judge Lewis Kaplan.

Reporter Mark Hamblett opens with the competing narratives—Chevron on one side, human rights attorney Donziger and the Ecuadoreans on the other—in this case:

Kaplan Monday denied the request of attorney Steven Donziger and two of his Ecuadorian clients for a jury trial in the case, where Chevron is alleging Donziger ran a racketeering conspiracy to win the so-called Lago Agrio litigation in Ecuador by fraud, and Donziger is accusing Chevron of scorched-earth tactics to avoid taking financial responsibility for environmental damage left behind by a predecessor oil company.

As the trial evidence mounted in Ecuador over Chevron's devastation of a sprawling swath of inhabited Amazon rainforest, it became increasingly clear that Chevron would likely be found liable. On that, the company was right, and in February 2011, the oil giant was ordered to pay nearly $19 billion in compensatory and punitive damages.

But by then Chevron had launched its retaliatory campaign against Donziger and the Ecuadoreans. In 2009, with an adverse judgment from the Ecuadorian court looming, Chevron press operative Chris Gidez wrote in an internal company memo that “our L-T [long-term] strategy is to demonize Donziger.”

After Chevron filed its lawsuit, Donziger said, "It then used 'the explosive' 'thermonuclear' impact of the allegations—the 'terrorizing' effect of civil RICO 'as another court has described it'—to launch a global smear campaign designed to destroy my reputation, chill my free speech rights, and drive me away from representing the Ecuadorian communities who are my clients. This campaign was promoted, encouraged and amplified by the very court that Chevron now seeks to preside over a bench trial."

In addition to "fundamental fairness" requiring a jury trial, Donziger said, "Chevron has accused me of being a 'criminal' in open court," and "it would amount to a travesty of justice to deny me and my clients a jury trial in what is essentially a private prosecution funded by corporate largesse."

Legal Newsline covered the development today as well, quoting Donziger spokesman Chris Gowen, who called Kaplan's decision “a clear abuse of power” and said that it shows Chevron doesn’t believe in its own case:

“This critical decision made only days before trial
virtually guarantees Chevron its desired outcome from a judge who
already has decided all key issues in the case before evidence has been
presented,” Gowen said in a statement.

While Judge Kaplan—who famed trial attorney John Keker charges with allowing Chevron’s RICO case to degenerate into a “Dickensian farce”—remains intent on being the sole decider, Donziger and the Ecuadoreans are preparing for trial.

As we file this post, there is one brief comment on the Legal News Line article from a reader named Peter. We don't know who Peter is but we think he nails it:

The fact that Donziger is prepared to risk a huge financial judgement in order to be tried by jury clearly illustrates which side is more confident of its merits.

Thursday, October 3, 2013

Last week, after bringing in heavy-hitting trial lawyer Ted Olson to argue its case, Chevron prevailed in its effort to keep its favorite judge overseeing the upcoming trial over the oil giant's retaliatory lawsuit against lawyer Steven Donziger and his clients from the Ecuadorian Amazon. Days later, on the eve of the trial, Chevron dropped its damages claims against Donziger.

Why would they do that?

Well, once Chevron secured Judge Lewis Kaplan—who has displayed outrightbias against the Ecuadorians and their legal team who sued Chevron over its rainforest Chernobyl—the company wanted to make sure it was Kaplan, and Kaplan alone, deciding the case.

As The Wall Street Journal—a pro-Big Business organ if there ever was one—put it:

"Trying the case before a jury would be riskier for the company, experts said, in part because jurors might not be sympathetic to its argument that it has been victimized by the lawyers for Ecuadorian villagers."

In other words, a jury would likely see right through Chevron's cynical efforts to play the victim after being found guilty of massive oil contamination—causing a horrific epidemic of oil-related sickness and death amongst thousands of poor rural Ecuadorians—in one of the most-litigated environmental cases in history.

And so, the company argued, without damages claims, Donziger loses his right to a jury trial.

Donziger and his clients are due to file a motion tomorrow explaining why the law still requires a jury rather than allowing a bench trial before Judge Lewis A. Kaplan, who has a documented history of bias in favor of Chevron.

But, in addition to making sure the oil giant's dear friend in the federal court is the sole "decider," the company is going to alarming lengths to rig the trial:

Chevron is now trying to bar any and all evidence of environmental contamination in Ecuador from its RICO case as part of a strategy to deny rainforest villagers and their New York attorney Steven Donziger a fair trial, according to recent court filings.

The press release continues:

Chevron has asked Judge Kaplan to bar Donziger and the Ecuadorians from using any of the overwhelming scientific evidence that proved the company’s guilt when it was found liable by the Ecuador court for $19 billion in damages.
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Chevron also has asked Judge Kaplan to bar Donziger and the Ecuadorians from presenting evidence related to “environmental and human conditions” in the affected area of Ecuador’s rainforest and to exclude the use of any scientific studies related to the contamination. The Ecuador court relied on such studies as well as tens of thousands of chemical sampling results to find Chevron liable in the case.

Christopher Gowen, a law professor and spokesman for Donziger and the Ecuadorians called Chevron’s attempts to restrict evidence “stunning in breadth and scope,” saying:

"Chevron obviously is so afraid of its own wrongdoing that it wants to have an environmental trial without talking about the environment. That’s what corporate polluters do when they get caught with their pants down.”

precluding Defendants from offering at trial evidence, arguments, or questioning in support of the proposition that the findings of the Cabrera report, the Ecuadorian judgment, or Defendants’ allegations in the Ecuadorian proceeding were accurate or supported by evidence and sound scientific analysis, including but not limited to a prohibition on the submission of evidence, arguments, or questioning regarding the following topics, except insofar as the evidence is otherwise relevant:

alleged environmental and human conditions in the Oriente region of Ecuador, including scientific or other studies, testing or sampling results, video or still images, or personal testimonies; and

the procedures employed in the TexPet Remediation, the efficacy of those procedures, or their compliance with agreements and with Ecuadorian law.